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A5891 - Summary

Prohibits participation in torture and improper treatment of prisoners by health care professionals; prohibits a health care professional from engaging, assisting, planning the torture or improper treatment of a prisoner; requires health care professionals to report torture and improper treatment.

S T A T E O F N E W Y O R K
________________________________________________________________________
5891
2011-2012 Regular Sessions
I N A S S E M B L Y
March 2, 2011
___________
Introduced by M. of A. GOTTFRIED, CAHILL, J. RIVERA, SCHIMEL, GLICK,
CLARK, MILLMAN, ROBINSON, JEFFRIES, PAULIN, HOOPER, KELLNER, JAFFEE,
REILLY, BARRON, LIFTON, COOK, LANCMAN, PERRY, ENGLEBRIGHT, O'DONNELL,
ARROYO, MARKEY, TITONE, P. RIVERA, J. MILLER, ROSENTHAL -- Multi-Spon-
sored by -- M. of A. BRENNAN, DINOWITZ, GALEF, GIBSON, HEASTIE, LUPAR-
DO, McENENY, MENG, NOLAN, PEOPLES-STOKES, PHEFFER, SCARBOROUGH, SWEE-
NEY, TOWNS, WEISENBERG, ZEBROWSKI -- read once and referred to the
Committee on Higher Education
AN ACT to amend the public health law, the education law and the labor
law, in relation to prohibiting participation in torture and improper
treatment of prisoners by health care professionals
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative policy and intent. This legislation is based
on, and is intended to give effect to, international treaties and stand-
ards; federal, state and local law; and professional standards relating
to torture, improper treatment of prisoners, and related matters. It is
guided by two basic principles: (1) health care professionals shall be
dedicated to providing the highest standard of health care, with
compassion and respect for human dignity and rights; and (2) torture and
improper treatment of prisoners are wrong and inconsistent with the
practice of the health care professions. The legislature finds that the
conduct prohibited by this act violates the ethical and legal obli-
gations of licensed health care professionals. This legislation will
further protect the professionalism of New York state licensed health
care professionals by authorizing and obligating them to refuse to
participate in torture and improper treatment of prisoners, which in
turn will protect the life and health of the people of the state and
those with whom New York licensed health care professionals interact. A
health care professional who comes to the aid of a prisoner should not
be presumed to be in violation when she or he is fulfilling the ethical
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05380-02-1

A. 5891 2
principle of beneficence. In contrast, a health care professional who,
for example, attends to a prisoner in order to allow torture or improper
treatment to commence or continue is not acting beneficently. Such
practices are inconsistent with professional ethics and standards and
are violations of this legislation. The legislature is mindful that
ordinarily there are limits on New York state's jurisdiction relating to
conduct outside the state or under federal authority. However, it is
proper for the state to regulate health care professional licensure in
relation to a professional's conduct, even where the conduct occurs
outside the state; certain wrongful out-of-state conduct is already
grounds for professional discipline. Therefore, it is the legislature's
intent that this legislation be applied to the fullest extent possible.
S 2. The public health law is amended by adding a new section 22 to
read as follows:
S 22. PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS BY
HEALTH CARE PROFESSIONALS. 1. DEFINITIONS. AS USED IN THIS SECTION, THE
TERMS "TORTURE" AND "IMPROPER TREATMENT" SHALL BE INTERPRETED IN ACCORD-
ANCE WITH APPLICABLE LAW, INCLUDING INTERNATIONAL TREATIES TO WHICH THE
UNITED STATES IS A PARTY. HOWEVER, FOR THE PURPOSES OF THIS SECTION, IT
SHALL NOT BE AN ELEMENT OF EITHER "TORTURE" OR "IMPROPER TREATMENT" THAT
SUCH ACTS BE COMMITTED BY A GOVERNMENT OR NON-GOVERNMENT ACTOR, ENTITY,
OR OFFICIAL; UNDER COLOR OF LAW; OR NOT UNDER COLOR OF LAW. AS USED IN
THIS SECTION, UNLESS THE CONTEXT CLEARLY REQUIRES OTHERWISE, THE FOLLOW-
ING TERMS HAVE THE FOLLOWING MEANINGS:
(A) "HEALTH CARE PROFESSIONAL" MEANS ANY PERSON LICENSED, REGISTERED,
CERTIFIED, OR EXEMPT TO PRACTICE UNDER (I) ANY OF THE FOLLOWING ARTICLES
OF THE EDUCATION LAW: ONE HUNDRED THIRTY-ONE (MEDICINE), ONE HUNDRED
THIRTY-ONE-B (PHYSICIAN ASSISTANTS AND SPECIALIST ASSISTANTS), ONE
HUNDRED THIRTY-TWO (CHIROPRACTIC), ONE HUNDRED THIRTY-THREE (DENTISTRY
AND DENTAL HYGIENE), ONE HUNDRED THIRTY-SIX (PHYSICAL THERAPY AND PHYS-
ICAL THERAPIST ASSISTANTS), ONE HUNDRED THIRTY-SEVEN (PHARMACY), ONE
HUNDRED THIRTY-NINE (NURSING), ONE HUNDRED FORTY (PROFESSIONAL MIDWIFERY
PRACTICE ACT), ONE HUNDRED FORTY-ONE (PODIATRY), ONE HUNDRED FORTY-THREE
(OPTOMETRY), ONE HUNDRED FORTY-FOUR (OPHTHALMIC DISPENSING), ONE HUNDRED
FIFTY-THREE (PSYCHOLOGY), ONE HUNDRED FIFTY-FOUR (SOCIAL WORK), ONE
HUNDRED FIFTY-FIVE (MASSAGE THERAPY), ONE HUNDRED FIFTY-SIX (OCCUPA-
TIONAL THERAPY), ONE HUNDRED FIFTY-SEVEN (DIETETICS AND NUTRITION), ONE
HUNDRED FIFTY-NINE (SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS), ONE
HUNDRED SIXTY (ACUPUNCTURE), ONE HUNDRED SIXTY-THREE (MENTAL HEALTH
PRACTITIONERS), ONE HUNDRED SIXTY-FOUR (RESPIRATORY THERAPISTS AND
RESPIRATORY THERAPY TECHNICIANS), ONE HUNDRED SIXTY-FIVE (CLINICAL LABO-
RATORY TECHNOLOGY PRACTICE ACT), OR ONE HUNDRED SIXTY-SIX (MEDICAL PHYS-
ICS PRACTICE), OR (II) ARTICLE THIRTY-FIVE OF THIS CHAPTER (PRACTICE OF
RADIOLOGIC TECHNOLOGY).
(B) "TORTURE" MEANS ANY INTENTIONAL ACT OR INTENTIONAL OMISSION BY
WHICH SEVERE PAIN OR SUFFERING, WHETHER PHYSICAL OR MENTAL, IS INFLICTED
ON A PERSON FOR SUCH PURPOSES AS OBTAINING FROM THE PERSON OR FROM A
THIRD PERSON INFORMATION OR A CONFESSION, PUNISHING THE PERSON FOR AN
ACT THE PERSON OR A THIRD PERSON HAS COMMITTED (INCLUDING THE HOLDING OF
A BELIEF OR MEMBERSHIP IN ANY GROUP) OR IS SUSPECTED OF HAVING COMMIT-
TED, OR INTIMIDATING OR COERCING THE PERSON OR A THIRD PERSON, OR FOR
ANY REASON BASED ON DISCRIMINATION OF ANY KIND. IT DOES NOT INCLUDE
PAIN OR SUFFERING ARISING ONLY FROM, INHERENT IN OR INCIDENTAL TO LAWFUL
SANCTION.
(C) "IMPROPER TREATMENT" MEANS (I) CRUEL, INHUMAN OR DEGRADING, TREAT-
MENT OR PUNISHMENT AS DEFINED BY APPLICABLE INTERNATIONAL TREATIES AND
A. 5891 3
THEIR CORRESPONDING INTERPRETING BODIES; OR CRUEL AND UNUSUAL PUNISHMENT
AS DEFINED IN THE UNITED STATES CONSTITUTION OR THE NEW YORK STATE
CONSTITUTION; OR (II) ANY VIOLATION OF SUBDIVISION THREE OR FOUR OF THIS
SECTION.
(D) "PRISONER" MEANS ANY PERSON WHO IS SUBJECT TO PUNISHMENT,
DETENTION, INCARCERATION, INTERROGATION, INTIMIDATION OR COERCION,
REGARDLESS OF WHETHER SUCH ACTION IS PERFORMED OR COMMITTED BY A GOVERN-
MENT OR NON-GOVERNMENT ACTOR, ENTITY, OR OFFICIAL; UNDER COLOR OF LAW;
OR NOT UNDER COLOR OF LAW.
(E) TO "ADVERSELY AFFECT" A PERSON'S PHYSICAL OR MENTAL HEALTH OR
CONDITION DOES NOT INCLUDE CAUSING ADVERSE EFFECTS THAT MAY ARISE FROM
TREATMENT OR CARE WHEN THAT TREATMENT OR CARE IS PERFORMED IN ACCORDANCE
WITH GENERALLY APPLICABLE LEGAL, HEALTH AND PROFESSIONAL STANDARDS AND
FOR THE PURPOSES OF EVALUATING, TREATING, PROTECTING OR IMPROVING THE
PERSON'S HEALTH.
(F) "INTERROGATION" MEANS THE QUESTIONING RELATED TO LAW ENFORCEMENT,
THE ENFORCEMENT OF RULES OR REGULATIONS OF AN INSTITUTION IN WHICH
PEOPLE ARE DETAINED THROUGH THE CRIMINAL JUSTICE SYSTEM OR FOR MILITARY
OR NATIONAL SECURITY REASONS (SUCH AS A JAIL OR OTHER DETENTION FACILI-
TY, POLICE FACILITY, PRISON, IMMIGRATION FACILITY, OR MILITARY FACILITY)
OR TO MILITARY AND NATIONAL SECURITY INTELLIGENCE GATHERING, WHETHER BY
A GOVERNMENT OR NON-GOVERNMENT ACTOR, ENTITY OR OFFICIAL. "INTERRO-
GATION" SHALL ALSO INCLUDE QUESTIONING TO AID OR ACCOMPLISH ANY ILLEGAL
ACTIVITY OR PURPOSE, WHETHER BY A GOVERNMENT OR NON-GOVERNMENT ACTOR,
ENTITY OR OFFICIAL. INTERROGATIONS ARE DISTINCT FROM QUESTIONING USED BY
HEALTH CARE PROFESSIONALS TO ASSESS THE PHYSICAL OR MENTAL CONDITION OF
AN INDIVIDUAL.
2. KNOWLEDGE. IT SHALL BE AN ELEMENT OF ANY VIOLATION OF THIS SECTION
THAT THE ACTOR KNEW OR REASONABLY SHOULD HAVE KNOWN THAT HIS OR HER
CONDUCT IS OF THE KIND PROHIBITED UNDER THIS SECTION. A HEALTH CARE
PROFESSIONAL WHO RECEIVES INFORMATION THAT INDICATES THAT A PRISONER AS
DEFINED BY THIS SECTION IS BEING, MAY IN THE FUTURE BE, OR HAS BEEN
SUBJECTED TO TORTURE OR IMPROPER TREATMENT, MUST USE DUE DILIGENCE, IN
ORDER TO ASSESS THE NATURE OF HIS OR HER CONDUCT AS COVERED BY THIS
SECTION.
3. GENERAL OBLIGATIONS OF HEALTH CARE PROFESSIONALS. (A) EVERY HEALTH
CARE PROFESSIONAL SHALL PROVIDE EVERY PRISONER UNDER HIS OR HER PROFES-
SIONAL CARE WITH CARE OR TREATMENT CONSISTENT WITH GENERALLY APPLICABLE
LEGAL, HEALTH AND PROFESSIONAL STANDARDS TO THE EXTENT THAT HE OR SHE IS
REASONABLY ABLE TO DO SO UNDER THE CIRCUMSTANCES, INCLUDING PROTECTING
THE CONFIDENTIALITY OF PATIENT INFORMATION.
(B) IN ALL CLINICAL ASSESSMENTS RELATING TO A PRISONER, WHETHER FOR
THERAPEUTIC OR EVALUATIVE PURPOSES, HEALTH CARE PROFESSIONALS SHALL
EXERCISE THEIR PROFESSIONAL JUDGMENT INDEPENDENT OF THE INTERESTS OF A
GOVERNMENT OR OTHER THIRD PARTY.
4. CERTAIN CONDUCT OF HEALTH CARE PROFESSIONALS PROHIBITED. (A) NO
HEALTH CARE PROFESSIONAL SHALL APPLY HIS OR HER KNOWLEDGE OR SKILLS IN
RELATION TO, ENGAGE IN ANY PROFESSIONAL RELATIONSHIP WITH, OR PERFORM
PROFESSIONAL SERVICES IN RELATION TO ANY PRISONER UNLESS THE PURPOSE IS
SOLELY TO EVALUATE, TREAT, PROTECT, OR IMPROVE THE PHYSICAL OR MENTAL
HEALTH OR CONDITION OF THE PRISONER (EXCEPT AS PERMITTED BY PARAGRAPH
(B) OR (C) OF SUBDIVISION FIVE OF THIS SECTION).
(B) NO HEALTH CARE PROFESSIONAL SHALL ENGAGE, DIRECTLY OR INDIRECTLY,
IN ANY ACT WHICH CONSTITUTES PARTICIPATION IN, COMPLICITY IN, INCITEMENT
TO, ASSISTANCE IN, PLANNING OR DESIGN OF, OR ATTEMPT OR CONSPIRACY TO
A. 5891 4
COMMIT TORTURE OR IMPROPER TREATMENT OF A PRISONER. PROHIBITED FORMS OF
ENGAGEMENT INCLUDE BUT ARE NOT LIMITED TO:
(I) PROVIDING MEANS, KNOWLEDGE OR SKILLS, INCLUDING CLINICAL FINDINGS
OR TREATMENT, WITH THE INTENT TO FACILITATE THE PRACTICE OF TORTURE OR
IMPROPER TREATMENT;
(II) PERMITTING HIS OR HER KNOWLEDGE, SKILLS OR CLINICAL FINDINGS OR
TREATMENT TO BE USED IN THE PROCESS OF OR TO FACILITATE TORTURE OR
IMPROPER TREATMENT;
(III) EXAMINING, EVALUATING, OR TREATING A PRISONER TO CERTIFY WHETHER
TORTURE OR IMPROPER TREATMENT CAN BEGIN, BE CONTINUED, OR BE RESUMED;
(IV) BEING PRESENT WHILE TORTURE OR IMPROPER TREATMENT IS BEING ADMIN-
ISTERED;
(V) OMITTING OR SUPPRESSING INDICATIONS OF TORTURE OR IMPROPER TREAT-
MENT FROM RECORDS OR REPORTS; AND
(VI) ALTERING HEALTH CARE RECORDS OR REPORTS TO HIDE, MISREPRESENT OR
DESTROY EVIDENCE OF TORTURE OR IMPROPER TREATMENT.
(C) NO HEALTH CARE PROFESSIONAL SHALL APPLY HIS OR HER KNOWLEDGE OR
SKILLS OR PERFORM ANY PROFESSIONAL SERVICE IN ORDER TO ASSIST IN THE
PUNISHMENT, DETENTION, INCARCERATION, INTIMIDATION, OR COERCION OF A
PRISONER WHEN SUCH ASSISTANCE IS PROVIDED IN A MANNER THAT MAY ADVERSELY
AFFECT THE PHYSICAL OR MENTAL HEALTH OR CONDITION OF THE PRISONER
(EXCEPT AS PERMITTED BY PARAGRAPH (A) OR (B) OF SUBDIVISION FIVE OF THIS
SECTION).
(D) NO HEALTH CARE PROFESSIONAL SHALL PARTICIPATE IN THE INTERROGATION
OF A PRISONER, INCLUDING BEING PRESENT IN THE INTERROGATION ROOM, ASKING
OR SUGGESTING QUESTIONS, ADVISING ON THE USE OF SPECIFIC INTERROGATION
TECHNIQUES, MONITORING THE INTERROGATION, OR MEDICALLY OR PSYCHOLOGICAL-
LY EVALUATING A PERSON FOR THE PURPOSE OF IDENTIFYING POTENTIAL INTERRO-
GATION METHODS OR STRATEGIES. HOWEVER, THIS PARAGRAPH SHALL NOT BAR A
HEALTH CARE PROFESSIONAL FROM ENGAGING IN CONDUCT UNDER PARAGRAPH (D) OF
SUBDIVISION FIVE OF THIS SECTION.
5. CERTAIN CONDUCT OF HEALTH CARE PROFESSIONALS PERMITTED. A HEALTH
CARE PROFESSIONAL MAY ENGAGE IN THE FOLLOWING CONDUCT SO LONG AS IT DOES
NOT VIOLATE SUBDIVISION THREE OR FOUR OF THIS SECTION, IT DOES NOT
ADVERSELY AFFECT THE PHYSICAL OR MENTAL HEALTH OR CONDITION OF A PRISON-
ER OR POTENTIAL SUBJECT, AND IS NOT OTHERWISE UNLAWFUL:
(A) APPROPRIATELY PARTICIPATING OR AIDING IN THE INVESTIGATION, PROSE-
CUTION, OR DEFENSE OF A CRIMINAL, ADMINISTRATIVE OR CIVIL MATTER;
(B) PARTICIPATING IN AN ACT THAT RESTRAINS A PRISONER OR TEMPORARILY
ALTERS THE PHYSICAL OR MENTAL ACTIVITY OF A PRISONER, WHERE THE ACT
COMPLIES WITH GENERALLY APPLICABLE LEGAL, HEALTH AND PROFESSIONAL STAND-
ARDS, IS NECESSARY FOR THE PROTECTION OF THE PHYSICAL OR MENTAL HEALTH,
CONDITION OR SAFETY OF THE PRISONER, OTHER PRISONERS, OR PERSONS CARING
FOR, GUARDING OR CONFINING THE PRISONER;
(C) CONDUCTING BONA FIDE HUMAN SUBJECT RESEARCH IN ACCORDANCE WITH
GENERALLY ACCEPTED LEGAL, HEALTH AND PROFESSIONAL STANDARDS WHERE THE
RESEARCH INCLUDES SAFEGUARDS FOR HUMAN SUBJECTS EQUIVALENT TO THOSE
REQUIRED BY FEDERAL LAW, INCLUDING INFORMED CONSENT AND INSTITUTIONAL
REVIEW BOARD APPROVAL WHERE APPLICABLE;
(D) TRAINING RELATED TO THE FOLLOWING PURPOSES, SO LONG AS IT IS NOT
PROVIDED IN SUPPORT OF SPECIFIC ONGOING OR ANTICIPATED INTERROGATIONS:
(I) RECOGNIZING AND RESPONDING TO PERSONS WITH PHYSICAL OR MENTAL
ILLNESS OR CONDITIONS,
(II) THE POSSIBLE PHYSICAL AND MENTAL EFFECTS OF PARTICULAR TECHNIQUES
AND CONDITIONS OF INTERROGATION, OR
A. 5891 5
(III) THE DEVELOPMENT OF EFFECTIVE INTERROGATION STRATEGIES NOT
INVOLVING THE PRACTICE OF TORTURE OR IMPROPER TREATMENT.
6. DUTY TO REPORT. A HEALTH CARE PROFESSIONAL WHO HAS REASONABLE
GROUNDS (NOT BASED SOLELY ON PUBLICLY AVAILABLE INFORMATION) TO BELIEVE
THAT TORTURE, IMPROPER TREATMENT OR OTHER CONDUCT IN VIOLATION OF THIS
SECTION HAS OCCURRED, IS OCCURRING, OR WILL OCCUR SHALL, AS SOON AS IS
POSSIBLE WITHOUT JEOPARDIZING THE PHYSICAL SAFETY OF HIMSELF OR HERSELF,
THE PRISONER, OR OTHER PARTIES, REPORT SUCH CONDUCT TO:
(A) A GOVERNMENT AGENCY THAT THE HEALTH CARE PROFESSIONAL REASONABLY
BELIEVES HAS LEGAL AUTHORITY TO PUNISH OR PREVENT THE CONTINUATION OF
TORTURE OR THE IMPROPER TREATMENT OF A PRISONER OR CONDUCT IN VIOLATION
OF THIS SECTION AND IS REASONABLY LIKELY TO ATTEMPT TO DO SO; OR
(B) A GOVERNMENTAL OR NON-GOVERNMENTAL ENTITY THAT THE HEALTH CARE
PROFESSIONAL REASONABLY BELIEVES WILL NOTIFY SUCH A GOVERNMENT AGENCY OF
THE TORTURE OR THE IMPROPER TREATMENT OF A PRISONER OR CONDUCT IN
VIOLATION OF THIS SECTION OR TAKE OTHER ACTION TO PUBLICIZE OR PREVENT
SUCH TORTURE, TREATMENT OR CONDUCT; AND
(C) IN ADDITION TO REPORTING UNDER PARAGRAPH (A) OR (B) OF THIS SUBDI-
VISION: (I) IN THE CASE OF AN ALLEGED VIOLATION BY A HEALTH CARE PROFES-
SIONAL LICENSED UNDER ARTICLE ONE HUNDRED THIRTY-ONE OR ONE HUNDRED
THIRTY-ONE-B OF THE EDUCATION LAW, A REPORT SHALL BE FILED WITH THE
OFFICE OF PROFESSIONAL MEDICAL CONDUCT; AND (II) IN THE CASE OF AN
ALLEGED VIOLATION BY ANY OTHER HEALTH CARE PROFESSIONAL LICENSED, REGIS-
TERED OR CERTIFIED UNDER TITLE EIGHT OF THE EDUCATION LAW, A REPORT
SHALL BE FILED WITH THE OFFICE OF PROFESSIONAL DISCIPLINE; PROVIDED THAT
FOR THE PURPOSE OF THIS PARAGRAPH, WHERE A PERSON HOLDS A LICENSE,
REGISTRATION OR CERTIFICATION UNDER THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK THAT IS FOR A PROFESSION SUBSTANTIALLY COMPA-
RABLE TO ONE LISTED IN PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION,
THE PERSON SHALL BE DEEMED TO BE A HEALTH CARE PROFESSIONAL AND THE
PERSON'S LICENSE, REGISTRATION OR CERTIFICATION SHALL BE DEEMED TO BE
UNDER THE APPROPRIATE ARTICLE OF TITLE EIGHT OF THE EDUCATION LAW.
7. MITIGATION. THE FOLLOWING MAY BE CONSIDERED IN FULL OR PARTIAL
MITIGATION OF A VIOLATION OF THIS SECTION BY THE HEALTH CARE PROFES-
SIONAL:
(A) COMPLIANCE WITH SUBDIVISION SIX OF THIS SECTION; OR
(B) COOPERATION IN GOOD FAITH WITH AN INVESTIGATION OF A VIOLATION OF
THIS SECTION.
8. APPLICABILITY. THIS SECTION SHALL APPLY TO CONDUCT TAKING PLACE
WITHIN OR OUTSIDE NEW YORK STATE, AND WITHOUT REGARD TO WHETHER THE
CONDUCT IS COMMITTED BY A GOVERNMENTAL OR NON-GOVERNMENTAL ENTITY, OFFI-
CIAL, OR ACTOR OR UNDER ACTUAL OR ASSERTED COLOR OF LAW.
9. SCOPE OF PRACTICE NOT EXPANDED. THIS SECTION SHALL NOT BE CONSTRUED
TO EXPAND THE LAWFUL SCOPE OF PRACTICE OF ANY HEALTH CARE PROFESSIONAL.
S 3. Section 6509 of the education law is amended by adding a new
subdivision 15 to read as follows:
(15) ANY VIOLATION OF SECTION TWENTY-TWO OF THE PUBLIC HEALTH LAW
(RELATING TO PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS
BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER THAT SECTION.
S 4. Section 6530 of the education law is amended by adding a new
subdivision 50 to read as follows:
50. ANY VIOLATION OF SECTION TWENTY-TWO OF THE PUBLIC HEALTH LAW
(RELATING TO PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS
BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER THAT SECTION.
A. 5891 6
S 5. Paragraphs (b) and (c) of subdivision 2 of section 740 of the
labor law, as added by chapter 660 of the laws of 1984, are amended and
a new paragraph (d) is added to read as follows:
(b) provides information to, or testifies before, any public body
conducting an investigation, hearing or inquiry into any such violation
of a law, rule or regulation by such employer; [or]
(c) objects to, or refuses to participate in any such activity, policy
or practice in violation of a law, rule or regulation[.]; OR
(D) REPORTS OR THREATENS TO REPORT ANY VIOLATION OF SECTION TWENTY-TWO
OF THE PUBLIC HEALTH LAW (RELATING TO PARTICIPATION IN TORTURE OR
IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE PROFESSIONALS).
S 6. Subdivision 3 of section 740 of the labor law, as added by chap-
ter 660 of the laws of 1984, is amended to read as follows:
3. Application. The protection against retaliatory personnel action
provided by paragraph (a) of subdivision two of this section pertaining
to disclosure to a public body shall not apply to an employee who makes
such disclosure to a public body unless the employee has brought the
activity, policy or practice in violation of law, rule or regulation to
the attention of a supervisor of the employer and has afforded such
employer a reasonable opportunity to correct such activity, policy or
practice. HOWEVER, THIS SUBDIVISION SHALL NOT APPLY TO ANY REPORT OF A
VIOLATION UNDER SECTION TWENTY-TWO OF THE PUBLIC HEALTH LAW (PARTIC-
IPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE
PROFESSIONALS).
S 7. Paragraphs (a) and (b) of subdivision 2 of section 741 of the
labor law, as added by chapter 24 of the laws of 2002, are amended and a
new paragraph (c) is added to read as follows:
(a) discloses or threatens to disclose to a supervisor, or to a public
body an activity, policy or practice of the employer or agent that the
employee, in good faith, reasonably believes constitutes improper quali-
ty of patient care; [or]
(b) objects to, or refuses to participate in any activity, policy or
practice of the employer or agent that the employee, in good faith,
reasonably believes constitutes improper quality of patient care[.]; OR
(C) REPORTS OR THREATENS TO REPORT ANY VIOLATION OF SECTION TWENTY-TWO
OF THE PUBLIC HEALTH LAW (PARTICIPATION IN TORTURE OR IMPROPER TREATMENT
OF PRISONERS BY HEALTH CARE PROFESSIONALS).
S 8. Subdivision 3 of section 741 of the labor law, as added by chap-
ter 24 of the laws of 2002, is amended to read as follows:
3. Application. The protection against retaliatory personnel action
provided by subdivision two of this section shall not apply unless the
employee has brought the improper quality of patient care to the atten-
tion of a supervisor and has afforded the employer a reasonable opportu-
nity to correct such activity, policy or practice. This subdivision
shall not apply to an action or failure to act described in paragraph
(a) of subdivision two of this section where the improper quality of
patient care described therein presents an imminent threat to public
health or safety or to the health of a specific patient and the employee
reasonably believes in good faith that reporting to a supervisor would
not result in corrective action. HOWEVER, THIS SUBDIVISION SHALL NOT
APPLY TO ANY REPORT OF A VIOLATION UNDER SECTION TWENTY-TWO OF THE
PUBLIC HEALTH LAW (PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF
PRISONERS BY HEALTH CARE PROFESSIONALS).
S 9. The introduction or enactment of this act shall not be construed
to mean that: (a) conduct described by this act does not already violate
state law or constitute professional misconduct; or (b) conduct other
A. 5891 7
than that described by this act does not violate other state law or
otherwise constitute professional misconduct.
S 10. Severability. If any provision of this act, or any application
of any provision of this act, is held to be invalid, that shall not
affect the validity or effectiveness of any other provision of this act
or any other application of any provision of this act.
S 11. This act shall take effect on the first of January next
succeeding the date on which it shall have become a law.

A5891A (ACTIVE) - Summary

Prohibits participation in torture and improper treatment of prisoners by health care professionals; prohibits a health care professional from engaging, assisting, planning the torture or improper treatment of a prisoner; requires health care professionals to report torture and improper treatment.

S T A T E O F N E W Y O R K
________________________________________________________________________
5891--A
2011-2012 Regular Sessions
I N A S S E M B L Y
March 2, 2011
___________
Introduced by M. of A. GOTTFRIED, CAHILL, J. RIVERA, SCHIMEL, GLICK,
CLARK, MILLMAN, ROBINSON, JEFFRIES, PAULIN, HOOPER, KELLNER, JAFFEE,
REILLY, BARRON, LIFTON, COOK, LANCMAN, PERRY, ENGLEBRIGHT, O'DONNELL,
ARROYO, MARKEY, TITONE, P. RIVERA, J. MILLER, ROSENTHAL, KAVANAGH,
STEVENSON, HEVESI -- Multi-Sponsored by -- M. of A. BOYLE, BRENNAN,
BRONSON, DINOWITZ, FARRELL, GALEF, GIBSON, HEASTIE, LUPARDO, McENENY,
MENG, NOLAN, PEOPLES-STOKES, PRETLOW, SCARBOROUGH, SWEENEY, WEISEN-
BERG, WRIGHT, ZEBROWSKI -- read once and referred to the Committee on
Higher Education -- recommitted to the Committee on Higher Education
in accordance with Assembly Rule 3, sec. 2 -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee
AN ACT to amend the public health law, the education law and the labor
law, in relation to prohibiting participation in torture and improper
treatment of prisoners by health care professionals
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative policy and intent. This legislation is based
on, and is intended to give effect to, international treaties and stand-
ards; federal, state and local law; and professional standards relating
to torture, improper treatment of prisoners, and related matters. It is
guided by two basic principles: (1) health care professionals shall be
dedicated to providing the highest standard of health care, with
compassion and respect for human dignity and rights; and (2) torture and
improper treatment of prisoners are wrong and inconsistent with the
practice of the health care professions. The legislature finds that the
conduct prohibited by this act violates the ethical and legal obli-
gations of licensed health care professionals. This legislation will
further protect the professionalism of New York state licensed health
care professionals by authorizing and obligating them to refuse to
participate in torture and improper treatment of prisoners, which in
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05380-04-2

A. 5891--A 2
turn will protect the life and health of the people of the state and
those with whom New York licensed health care professionals interact. A
health care professional who comes to the aid of a prisoner should not
be presumed to be in violation when she or he is fulfilling the ethical
principle of beneficence. In contrast, a health care professional who,
for example, attends to a prisoner in order to allow torture or improper
treatment to commence or continue is not acting beneficently. Such
practices are inconsistent with professional ethics and standards and
are violations of this legislation. The legislature is mindful that
ordinarily there are limits on New York state's jurisdiction relating to
conduct outside the state or under federal authority. However, it is
proper for the state to regulate health care professional licensure in
relation to a professional's conduct, even where the conduct occurs
outside the state; certain wrongful out-of-state conduct is already
grounds for professional discipline. Therefore, it is the legislature's
intent that this legislation be applied to the fullest extent possible.
S 2. The public health law is amended by adding a new section 23 to
read as follows:
S 23. PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS BY
HEALTH CARE PROFESSIONALS. 1. DEFINITIONS. AS USED IN THIS SECTION, THE
TERMS "TORTURE" AND "IMPROPER TREATMENT" SHALL BE INTERPRETED IN ACCORD-
ANCE WITH APPLICABLE LAW, INCLUDING INTERNATIONAL TREATIES TO WHICH THE
UNITED STATES IS A PARTY. HOWEVER, FOR THE PURPOSES OF THIS SECTION, IT
SHALL NOT BE AN ELEMENT OF EITHER "TORTURE" OR "IMPROPER TREATMENT" THAT
SUCH ACTS BE COMMITTED BY A GOVERNMENT OR NON-GOVERNMENT ACTOR, ENTITY,
OR OFFICIAL; UNDER COLOR OF LAW; OR NOT UNDER COLOR OF LAW. AS USED IN
THIS SECTION, UNLESS THE CONTEXT CLEARLY REQUIRES OTHERWISE, THE FOLLOW-
ING TERMS HAVE THE FOLLOWING MEANINGS:
(A) "HEALTH CARE PROFESSIONAL" MEANS ANY PERSON LICENSED, REGISTERED,
CERTIFIED, OR EXEMPT TO PRACTICE UNDER (I) ANY OF THE FOLLOWING ARTICLES
OF THE EDUCATION LAW: ONE HUNDRED THIRTY-ONE (MEDICINE), ONE HUNDRED
THIRTY-ONE-B (PHYSICIAN ASSISTANTS AND SPECIALIST ASSISTANTS), ONE
HUNDRED THIRTY-TWO (CHIROPRACTIC), ONE HUNDRED THIRTY-THREE (DENTISTRY
AND DENTAL HYGIENE), ONE HUNDRED THIRTY-SIX (PHYSICAL THERAPY AND PHYS-
ICAL THERAPIST ASSISTANTS), ONE HUNDRED THIRTY-SEVEN (PHARMACY), ONE
HUNDRED THIRTY-NINE (NURSING), ONE HUNDRED FORTY (PROFESSIONAL MIDWIFERY
PRACTICE ACT), ONE HUNDRED FORTY-ONE (PODIATRY), ONE HUNDRED FORTY-THREE
(OPTOMETRY), ONE HUNDRED FORTY-FOUR (OPHTHALMIC DISPENSING), ONE HUNDRED
FIFTY-THREE (PSYCHOLOGY), ONE HUNDRED FIFTY-FOUR (SOCIAL WORK), ONE
HUNDRED FIFTY-FIVE (MASSAGE THERAPY), ONE HUNDRED FIFTY-SIX (OCCUPA-
TIONAL THERAPY), ONE HUNDRED FIFTY-SEVEN (DIETETICS AND NUTRITION), ONE
HUNDRED FIFTY-NINE (SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS), ONE
HUNDRED SIXTY (ACUPUNCTURE), ONE HUNDRED SIXTY-THREE (MENTAL HEALTH
PRACTITIONERS), ONE HUNDRED SIXTY-FOUR (RESPIRATORY THERAPISTS AND
RESPIRATORY THERAPY TECHNICIANS), ONE HUNDRED SIXTY-FIVE (CLINICAL LABO-
RATORY TECHNOLOGY PRACTICE ACT), OR ONE HUNDRED SIXTY-SIX (MEDICAL PHYS-
ICS PRACTICE), OR (II) ARTICLE THIRTY-FIVE OF THIS CHAPTER (PRACTICE OF
RADIOLOGIC TECHNOLOGY).
(B) "TORTURE" MEANS ANY INTENTIONAL ACT OR INTENTIONAL OMISSION BY
WHICH SEVERE PAIN OR SUFFERING, WHETHER PHYSICAL OR MENTAL, IS INFLICTED
ON A PERSON FOR SUCH PURPOSES AS OBTAINING FROM THE PERSON OR FROM A
THIRD PERSON INFORMATION OR A CONFESSION, PUNISHING THE PERSON FOR AN
ACT THE PERSON OR A THIRD PERSON HAS COMMITTED (INCLUDING THE HOLDING OF
A BELIEF OR MEMBERSHIP IN ANY GROUP) OR IS SUSPECTED OF HAVING COMMIT-
TED, OR INTIMIDATING OR COERCING THE PERSON OR A THIRD PERSON, OR FOR
ANY REASON BASED ON DISCRIMINATION OF ANY KIND. IT DOES NOT INCLUDE
A. 5891--A 3
PAIN OR SUFFERING ARISING ONLY FROM, INHERENT IN OR INCIDENTAL TO LAWFUL
SANCTION.
(C) "IMPROPER TREATMENT" MEANS (I) CRUEL, INHUMAN OR DEGRADING, TREAT-
MENT OR PUNISHMENT AS DEFINED BY APPLICABLE INTERNATIONAL TREATIES AND
THEIR CORRESPONDING INTERPRETING BODIES; OR CRUEL AND UNUSUAL PUNISHMENT
AS DEFINED IN THE UNITED STATES CONSTITUTION OR THE NEW YORK STATE
CONSTITUTION; OR (II) ANY VIOLATION OF SUBDIVISION THREE OR FOUR OF THIS
SECTION.
(D) "PRISONER" MEANS ANY PERSON WHO IS SUBJECT TO PUNISHMENT,
DETENTION, INCARCERATION, INTERROGATION, INTIMIDATION OR COERCION,
REGARDLESS OF WHETHER SUCH ACTION IS PERFORMED OR COMMITTED BY A GOVERN-
MENT OR NON-GOVERNMENT ACTOR, ENTITY, OR OFFICIAL; UNDER COLOR OF LAW;
OR NOT UNDER COLOR OF LAW.
(E) TO "ADVERSELY AFFECT" A PERSON'S PHYSICAL OR MENTAL HEALTH OR
CONDITION DOES NOT INCLUDE CAUSING ADVERSE EFFECTS THAT MAY ARISE FROM
TREATMENT OR CARE WHEN THAT TREATMENT OR CARE IS PERFORMED IN ACCORDANCE
WITH GENERALLY APPLICABLE LEGAL, HEALTH AND PROFESSIONAL STANDARDS AND
FOR THE PURPOSES OF EVALUATING, TREATING, PROTECTING OR IMPROVING THE
PERSON'S HEALTH.
(F) "INTERROGATION" MEANS THE QUESTIONING RELATED TO LAW ENFORCEMENT,
THE ENFORCEMENT OF RULES OR REGULATIONS OF AN INSTITUTION IN WHICH
PEOPLE ARE DETAINED THROUGH THE CRIMINAL JUSTICE SYSTEM OR FOR MILITARY
OR NATIONAL SECURITY REASONS (SUCH AS A JAIL OR OTHER DETENTION FACILI-
TY, POLICE FACILITY, PRISON, IMMIGRATION FACILITY, OR MILITARY FACILITY)
OR TO MILITARY AND NATIONAL SECURITY INTELLIGENCE GATHERING, WHETHER BY
A GOVERNMENT OR NON-GOVERNMENT ACTOR, ENTITY OR OFFICIAL. "INTERRO-
GATION" SHALL ALSO INCLUDE QUESTIONING TO AID OR ACCOMPLISH ANY ILLEGAL
ACTIVITY OR PURPOSE, WHETHER BY A GOVERNMENT OR NON-GOVERNMENT ACTOR,
ENTITY OR OFFICIAL. INTERROGATIONS ARE DISTINCT FROM QUESTIONING USED BY
HEALTH CARE PROFESSIONALS TO ASSESS THE PHYSICAL OR MENTAL CONDITION OF
AN INDIVIDUAL.
2. KNOWLEDGE. IT SHALL BE AN ELEMENT OF ANY VIOLATION OF THIS SECTION
THAT THE ACTOR KNEW OR REASONABLY SHOULD HAVE KNOWN THAT HIS OR HER
CONDUCT IS OF THE KIND PROHIBITED UNDER THIS SECTION. A HEALTH CARE
PROFESSIONAL WHO RECEIVES INFORMATION THAT INDICATES THAT A PRISONER AS
DEFINED BY THIS SECTION IS BEING, MAY IN THE FUTURE BE, OR HAS BEEN
SUBJECTED TO TORTURE OR IMPROPER TREATMENT, MUST USE DUE DILIGENCE, IN
ORDER TO ASSESS THE NATURE OF HIS OR HER CONDUCT AS COVERED BY THIS
SECTION.
3. GENERAL OBLIGATIONS OF HEALTH CARE PROFESSIONALS. (A) EVERY HEALTH
CARE PROFESSIONAL SHALL PROVIDE EVERY PRISONER UNDER HIS OR HER PROFES-
SIONAL CARE WITH CARE OR TREATMENT CONSISTENT WITH GENERALLY APPLICABLE
LEGAL, HEALTH AND PROFESSIONAL STANDARDS TO THE EXTENT THAT HE OR SHE IS
REASONABLY ABLE TO DO SO UNDER THE CIRCUMSTANCES, INCLUDING PROTECTING
THE CONFIDENTIALITY OF PATIENT INFORMATION.
(B) IN ALL CLINICAL ASSESSMENTS RELATING TO A PRISONER, WHETHER FOR
THERAPEUTIC OR EVALUATIVE PURPOSES, HEALTH CARE PROFESSIONALS SHALL
EXERCISE THEIR PROFESSIONAL JUDGMENT INDEPENDENT OF THE INTERESTS OF A
GOVERNMENT OR OTHER THIRD PARTY.
4. CERTAIN CONDUCT OF HEALTH CARE PROFESSIONALS PROHIBITED. (A) NO
HEALTH CARE PROFESSIONAL SHALL APPLY HIS OR HER KNOWLEDGE OR SKILLS IN
RELATION TO, ENGAGE IN ANY PROFESSIONAL RELATIONSHIP WITH, OR PERFORM
PROFESSIONAL SERVICES IN RELATION TO ANY PRISONER UNLESS THE PURPOSE IS
SOLELY TO EVALUATE, TREAT, PROTECT, OR IMPROVE THE PHYSICAL OR MENTAL
HEALTH OR CONDITION OF THE PRISONER (EXCEPT AS PERMITTED BY PARAGRAPH
(B) OR (C) OF SUBDIVISION FIVE OF THIS SECTION).
A. 5891--A 4
(B) NO HEALTH CARE PROFESSIONAL SHALL ENGAGE, DIRECTLY OR INDIRECTLY,
IN ANY ACT WHICH CONSTITUTES PARTICIPATION IN, COMPLICITY IN, INCITEMENT
TO, ASSISTANCE IN, PLANNING OR DESIGN OF, OR ATTEMPT OR CONSPIRACY TO
COMMIT TORTURE OR IMPROPER TREATMENT OF A PRISONER. PROHIBITED FORMS OF
ENGAGEMENT INCLUDE BUT ARE NOT LIMITED TO:
(I) PROVIDING MEANS, KNOWLEDGE OR SKILLS, INCLUDING CLINICAL FINDINGS
OR TREATMENT, WITH THE INTENT TO FACILITATE THE PRACTICE OF TORTURE OR
IMPROPER TREATMENT;
(II) PERMITTING HIS OR HER KNOWLEDGE, SKILLS OR CLINICAL FINDINGS OR
TREATMENT TO BE USED IN THE PROCESS OF OR TO FACILITATE TORTURE OR
IMPROPER TREATMENT;
(III) EXAMINING, EVALUATING, OR TREATING A PRISONER TO CERTIFY WHETHER
TORTURE OR IMPROPER TREATMENT CAN BEGIN, BE CONTINUED, OR BE RESUMED;
(IV) BEING PRESENT WHILE TORTURE OR IMPROPER TREATMENT IS BEING ADMIN-
ISTERED;
(V) OMITTING OR SUPPRESSING INDICATIONS OF TORTURE OR IMPROPER TREAT-
MENT FROM RECORDS OR REPORTS; AND
(VI) ALTERING HEALTH CARE RECORDS OR REPORTS TO HIDE, MISREPRESENT OR
DESTROY EVIDENCE OF TORTURE OR IMPROPER TREATMENT.
(C) NO HEALTH CARE PROFESSIONAL SHALL APPLY HIS OR HER KNOWLEDGE OR
SKILLS OR PERFORM ANY PROFESSIONAL SERVICE IN ORDER TO ASSIST IN THE
PUNISHMENT, DETENTION, INCARCERATION, INTIMIDATION, OR COERCION OF A
PRISONER WHEN SUCH ASSISTANCE IS PROVIDED IN A MANNER THAT MAY ADVERSELY
AFFECT THE PHYSICAL OR MENTAL HEALTH OR CONDITION OF THE PRISONER
(EXCEPT AS PERMITTED BY PARAGRAPH (A) OR (B) OF SUBDIVISION FIVE OF THIS
SECTION).
(D) NO HEALTH CARE PROFESSIONAL SHALL PARTICIPATE IN THE INTERROGATION
OF A PRISONER, INCLUDING BEING PRESENT IN THE INTERROGATION ROOM, ASKING
OR SUGGESTING QUESTIONS, ADVISING ON THE USE OF SPECIFIC INTERROGATION
TECHNIQUES, MONITORING THE INTERROGATION, OR MEDICALLY OR PSYCHOLOGICAL-
LY EVALUATING A PERSON FOR THE PURPOSE OF IDENTIFYING POTENTIAL INTERRO-
GATION METHODS OR STRATEGIES. HOWEVER, THIS PARAGRAPH SHALL NOT BAR A
HEALTH CARE PROFESSIONAL FROM ENGAGING IN CONDUCT UNDER PARAGRAPH (D) OF
SUBDIVISION FIVE OF THIS SECTION.
5. CERTAIN CONDUCT OF HEALTH CARE PROFESSIONALS PERMITTED. A HEALTH
CARE PROFESSIONAL MAY ENGAGE IN THE FOLLOWING CONDUCT SO LONG AS IT DOES
NOT VIOLATE SUBDIVISION THREE OR FOUR OF THIS SECTION, IT DOES NOT
ADVERSELY AFFECT THE PHYSICAL OR MENTAL HEALTH OR CONDITION OF A PRISON-
ER OR POTENTIAL SUBJECT, AND IS NOT OTHERWISE UNLAWFUL:
(A) APPROPRIATELY PARTICIPATING OR AIDING IN THE INVESTIGATION, PROSE-
CUTION, OR DEFENSE OF A CRIMINAL, ADMINISTRATIVE OR CIVIL MATTER;
(B) PARTICIPATING IN AN ACT THAT RESTRAINS A PRISONER OR TEMPORARILY
ALTERS THE PHYSICAL OR MENTAL ACTIVITY OF A PRISONER, WHERE THE ACT
COMPLIES WITH GENERALLY APPLICABLE LEGAL, HEALTH AND PROFESSIONAL STAND-
ARDS, IS NECESSARY FOR THE PROTECTION OF THE PHYSICAL OR MENTAL HEALTH,
CONDITION OR SAFETY OF THE PRISONER, OTHER PRISONERS, OR PERSONS CARING
FOR, GUARDING OR CONFINING THE PRISONER;
(C) CONDUCTING BONA FIDE HUMAN SUBJECT RESEARCH IN ACCORDANCE WITH
GENERALLY ACCEPTED LEGAL, HEALTH AND PROFESSIONAL STANDARDS WHERE THE
RESEARCH INCLUDES SAFEGUARDS FOR HUMAN SUBJECTS EQUIVALENT TO THOSE
REQUIRED BY FEDERAL LAW, INCLUDING INFORMED CONSENT AND INSTITUTIONAL
REVIEW BOARD APPROVAL WHERE APPLICABLE;
(D) TRAINING RELATED TO THE FOLLOWING PURPOSES, SO LONG AS IT IS NOT
PROVIDED IN SUPPORT OF SPECIFIC ONGOING OR ANTICIPATED INTERROGATIONS:
(I) RECOGNIZING AND RESPONDING TO PERSONS WITH PHYSICAL OR MENTAL
ILLNESS OR CONDITIONS,
A. 5891--A 5
(II) THE POSSIBLE PHYSICAL AND MENTAL EFFECTS OF PARTICULAR TECHNIQUES
AND CONDITIONS OF INTERROGATION, OR
(III) THE DEVELOPMENT OF EFFECTIVE INTERROGATION STRATEGIES NOT
INVOLVING THE PRACTICE OF TORTURE OR IMPROPER TREATMENT.
6. DUTY TO REPORT. A HEALTH CARE PROFESSIONAL WHO HAS REASONABLE
GROUNDS (NOT BASED SOLELY ON PUBLICLY AVAILABLE INFORMATION) TO BELIEVE
THAT TORTURE, IMPROPER TREATMENT OR OTHER CONDUCT IN VIOLATION OF THIS
SECTION HAS OCCURRED, IS OCCURRING, OR WILL OCCUR SHALL, AS SOON AS IS
POSSIBLE WITHOUT JEOPARDIZING THE PHYSICAL SAFETY OF HIMSELF OR HERSELF,
THE PRISONER, OR OTHER PARTIES, REPORT SUCH CONDUCT TO:
(A) A GOVERNMENT AGENCY THAT THE HEALTH CARE PROFESSIONAL REASONABLY
BELIEVES HAS LEGAL AUTHORITY TO PUNISH OR PREVENT THE CONTINUATION OF
TORTURE OR THE IMPROPER TREATMENT OF A PRISONER OR CONDUCT IN VIOLATION
OF THIS SECTION AND IS REASONABLY LIKELY TO ATTEMPT TO DO SO; OR
(B) A GOVERNMENTAL OR NON-GOVERNMENTAL ENTITY THAT THE HEALTH CARE
PROFESSIONAL REASONABLY BELIEVES WILL NOTIFY SUCH A GOVERNMENT AGENCY OF
THE TORTURE OR THE IMPROPER TREATMENT OF A PRISONER OR CONDUCT IN
VIOLATION OF THIS SECTION OR TAKE OTHER ACTION TO PUBLICIZE OR PREVENT
SUCH TORTURE, TREATMENT OR CONDUCT; AND
(C) IN ADDITION TO REPORTING UNDER PARAGRAPH (A) OR (B) OF THIS SUBDI-
VISION: (I) IN THE CASE OF AN ALLEGED VIOLATION BY A HEALTH CARE PROFES-
SIONAL LICENSED UNDER ARTICLE ONE HUNDRED THIRTY-ONE OR ONE HUNDRED
THIRTY-ONE-B OF THE EDUCATION LAW, A REPORT SHALL BE FILED WITH THE
OFFICE OF PROFESSIONAL MEDICAL CONDUCT; AND (II) IN THE CASE OF AN
ALLEGED VIOLATION BY ANY OTHER HEALTH CARE PROFESSIONAL LICENSED, REGIS-
TERED OR CERTIFIED UNDER TITLE EIGHT OF THE EDUCATION LAW, A REPORT
SHALL BE FILED WITH THE OFFICE OF PROFESSIONAL DISCIPLINE; PROVIDED THAT
FOR THE PURPOSE OF THIS PARAGRAPH, WHERE A PERSON HOLDS A LICENSE,
REGISTRATION OR CERTIFICATION UNDER THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK THAT IS FOR A PROFESSION SUBSTANTIALLY COMPA-
RABLE TO ONE LISTED IN PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION,
THE PERSON SHALL BE DEEMED TO BE A HEALTH CARE PROFESSIONAL AND THE
PERSON'S LICENSE, REGISTRATION OR CERTIFICATION SHALL BE DEEMED TO BE
UNDER THE APPROPRIATE ARTICLE OF TITLE EIGHT OF THE EDUCATION LAW.
7. MITIGATION. THE FOLLOWING MAY BE CONSIDERED IN FULL OR PARTIAL
MITIGATION OF A VIOLATION OF THIS SECTION BY THE HEALTH CARE PROFES-
SIONAL:
(A) COMPLIANCE WITH SUBDIVISION SIX OF THIS SECTION; OR
(B) COOPERATION IN GOOD FAITH WITH AN INVESTIGATION OF A VIOLATION OF
THIS SECTION.
8. APPLICABILITY. THIS SECTION SHALL APPLY TO CONDUCT TAKING PLACE
WITHIN OR OUTSIDE NEW YORK STATE, AND WITHOUT REGARD TO WHETHER THE
CONDUCT IS COMMITTED BY A GOVERNMENTAL OR NON-GOVERNMENTAL ENTITY, OFFI-
CIAL, OR ACTOR OR UNDER ACTUAL OR ASSERTED COLOR OF LAW.
9. SCOPE OF PRACTICE NOT EXPANDED. THIS SECTION SHALL NOT BE CONSTRUED
TO EXPAND THE LAWFUL SCOPE OF PRACTICE OF ANY HEALTH CARE PROFESSIONAL.
S 3. Section 6509 of the education law is amended by adding a new
subdivision 15 to read as follows:
(15) ANY VIOLATION OF SECTION TWENTY-THREE OF THE PUBLIC HEALTH LAW
(RELATING TO PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS
BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER THAT SECTION.
S 4. Section 6530 of the education law is amended by adding a new
subdivision 50 to read as follows:
50. ANY VIOLATION OF SECTION TWENTY-THREE OF THE PUBLIC HEALTH LAW
(RELATING TO PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS
BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER THAT SECTION.
A. 5891--A 6
S 5. Paragraphs (b) and (c) of subdivision 2 of section 740 of the
labor law, as added by chapter 660 of the laws of 1984, are amended and
a new paragraph (d) is added to read as follows:
(b) provides information to, or testifies before, any public body
conducting an investigation, hearing or inquiry into any such violation
of a law, rule or regulation by such employer; [or]
(c) objects to, or refuses to participate in any such activity, policy
or practice in violation of a law, rule or regulation[.]; OR
(D) REPORTS OR THREATENS TO REPORT ANY VIOLATION OF SECTION
TWENTY-THREE OF THE PUBLIC HEALTH LAW (RELATING TO PARTICIPATION IN
TORTURE OR IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE PROFES-
SIONALS).
S 6. Subdivision 3 of section 740 of the labor law, as added by chap-
ter 660 of the laws of 1984, is amended to read as follows:
3. Application. The protection against retaliatory personnel action
provided by paragraph (a) of subdivision two of this section pertaining
to disclosure to a public body shall not apply to an employee who makes
such disclosure to a public body unless the employee has brought the
activity, policy or practice in violation of law, rule or regulation to
the attention of a supervisor of the employer and has afforded such
employer a reasonable opportunity to correct such activity, policy or
practice. HOWEVER, THIS SUBDIVISION SHALL NOT APPLY TO ANY REPORT OF A
VIOLATION UNDER SECTION TWENTY-THREE OF THE PUBLIC HEALTH LAW (PARTIC-
IPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE
PROFESSIONALS).
S 7. Paragraphs (a) and (b) of subdivision 2 of section 741 of the
labor law, as added by chapter 24 of the laws of 2002, are amended and a
new paragraph (c) is added to read as follows:
(a) discloses or threatens to disclose to a supervisor, or to a public
body an activity, policy or practice of the employer or agent that the
employee, in good faith, reasonably believes constitutes improper quali-
ty of patient care; [or]
(b) objects to, or refuses to participate in any activity, policy or
practice of the employer or agent that the employee, in good faith,
reasonably believes constitutes improper quality of patient care[.]; OR
(C) REPORTS OR THREATENS TO REPORT ANY VIOLATION OF SECTION
TWENTY-THREE OF THE PUBLIC HEALTH LAW (PARTICIPATION IN TORTURE OR
IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE PROFESSIONALS).
S 8. Subdivision 3 of section 741 of the labor law, as added by chap-
ter 24 of the laws of 2002, is amended to read as follows:
3. Application. The protection against retaliatory personnel action
provided by subdivision two of this section shall not apply unless the
employee has brought the improper quality of patient care to the atten-
tion of a supervisor and has afforded the employer a reasonable opportu-
nity to correct such activity, policy or practice. This subdivision
shall not apply to an action or failure to act described in paragraph
(a) of subdivision two of this section where the improper quality of
patient care described therein presents an imminent threat to public
health or safety or to the health of a specific patient and the employee
reasonably believes in good faith that reporting to a supervisor would
not result in corrective action. HOWEVER, THIS SUBDIVISION SHALL NOT
APPLY TO ANY REPORT OF A VIOLATION UNDER SECTION TWENTY-THREE OF THE
PUBLIC HEALTH LAW (PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF
PRISONERS BY HEALTH CARE PROFESSIONALS).
S 9. The introduction or enactment of this act shall not be construed
to mean that: (a) conduct described by this act does not already violate
A. 5891--A 7
state law or constitute professional misconduct; or (b) conduct other
than that described by this act does not violate other state law or
otherwise constitute professional misconduct.
S 10. Severability. If any provision of this act, or any application
of any provision of this act, is held to be invalid, that shall not
affect the validity or effectiveness of any other provision of this act
or any other application of any provision of this act.
S 11. This act shall take effect on the first of January next
succeeding the date on which it shall have become a law.

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